The Journal of Human Rights

The Journal of Human Rights

Democratic Legitimacy of Governments: From Theory to Practice

Document Type : Research Article

Author
Sattar Azizi
Prof. of International Law, Faculty of Humanities, Bu-Ali Sina University, Hamedan, Iran.
10.22096/hr.2021.538736.1366
Abstract
In traditional international law,"Effective Authority" has been the applicable criterion in recognizing the legitimacy of governments and their recognition by other states. The United Nations also took note of this criterion in accepting representatives identified by governments. However, after the Cold War, a new criterion, the "Democratic Legitimacy," was introduced to recognize the legitimacy of new governments. Increasing attention to human rights and adherence to democratic norms in governance has strengthened this theory among jurists. The main question of this article is what is the applicable criterion in examining the "legality of governments" in international law? In this article, which is written by descriptive-analytical method and by studying books and articles, we examine the application of the theory of democratic legitimacy in the recognition of governments. By studying the change of governments after the adoption of the UN Charter until 2020, we conclude that the theory of democratic legitimacy was applied only in response to military coup d'état against democratically elected governments after the end of the Cold War. In other causes of regime change including revolutions and civil war; The New Government is recognized by the international community and credentials of its representatives accredited to the United Nations on the basis of the traditional criterion of effective authority. However, there are few exemptions such as Islamic Emirate of Afghanistan.
Keywords
Democratic Governance
Effective authority
Military coups
Recognition of Governments
Credentials Committee
  1. A) Books and articles

A-1: Persian

  • Tavakoli, Ali (2011), "Democratic legitimacy and change in the concept of recognition of countries and governments", Public Law Research, Volume 13, Number 32, pp. 1-30.

 Joyner, Christopher (1989), "US Attack on Granada: Consequences and Legal Situation", translated by Assadollah Karimi, International Law Journal, Volume 9, Number 11, pp. 225-266.

  • Ramezani Ghavamabadi, Mohammad Hossein (2013), "Establishment of Senegal Extraordinary Branches for the Trial of Hussein Habre: A Step Forward in the Fight against International Crimes", Journal of Criminal Law, Volume 4, Number 2, pp. 89-117.
  • Ziaei, Seyed Yaser (2017), "International Law and Obligations of Revolutionary Governments: A Look at the Islamic Awakening", Comparative Research of Islamic and Western Law, Fourth Year, No. 3, pp. 244-95
  • Ziaei Bigdeli, Mohammad Reza (1398), Public International Law, Tehran, Ganj-e-Danesh, 65th edition.
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. Qari Seyed Fatemi, Seyed Mohammad (2010), Human Rights in the Contemporary World, Tehran, Second Office, Second Edition, Tehran, Shahr-e Danesh Institute for Legal Studies and Research.

 

 

 

  1. B) Thesis
  • Ebrahim Gol, Alireza (2009), The Impact of counter Measures on the Execution of International Government Responsibility with Emphasis on Responsibility Arising from Collective Interests, PhD Thesis in International Law, Faculty of Law, Shahid Beheshti University.

 

 

A-2: Latin

 

  • Abid, Liselotte(2020). " Shi'ism and the Vision of Islamic Democracy – Ways to Secure Peace and Human Rights", The Journal of Human Rights, Vol:15,No.2,Issue.30,pp.99-116.

 

  • Bahcheli, Tozun (2004), " Under Turkey’s wings: The Turkish Republic of Northern Cyprus, the struggle for international acceptance", in: Tozun Bahcheli, Barry Bartmann and Henry Srebrnik (eds.), De Facto States: The quest for sovereignty, Routledge.pp.164-186.
  • Brownlie Ian (1982). "Recognition in Theory and Practice", British Yearbook of International Law, Volume 53, Issue 1, pp.197–211.
  • Chan, C. W. Phil (2009), "The Legal Status of Taiwan and the Legality of the Use of Force in a Cross-Taiwan Strait Conflict", Chinese Journal of International Law, Vol. 8, No. 2, pp. 455–492.

 

  • Charlesworth, Hilary (2015). “Democracy and International Law.” In Recueil des Cours 371: Collected Courses of the Hague Academy of International Law 2014. Edited by Hilary Charlesworth, 43–152. Leiden, The Netherlands: Brill.
  • D'Aspremont, Jean (2010). “Responsibility for Coups d'Etat in International Law”, Tulane Journal of International and Comparative Law, Vol. 18, Issue 2, pp. 451-476.
  • De Wet, Erica (2019). "The Role of Democratic Legitimacy in the Recognition of Governments in Africa since the end of the Cold War", International Journal of Constitutional Law, vol:17, Issue:2,pp.470-478.
  • Franck M. Thomas (1992). "The Emerging Right to Democratic Governance", The American Journal of International Law, vol: 86, no: 1, pp.46-91.
  • Henn, Heike (2010). A Concise Encyclopedia of the United Nations, Martinus Nijhoff Publishers,2010.
  • Kelsen,Hans (1961). General Theory of Law and State, Anders Wedberg trans, Russell & Russell.
  • Kufuor Oteng Kofi (2002). "The OAU and the Recognition of Governments in Africa: Analyzing Its Practice and Proposals for the Future", American University International Law Review, vol: 17, no. 2, pp. 369-401
  • Marinoy, Nikolay and Hein Goemans (2014). "Coups and Democracy", British Journal of Political Science, Volume 44 , Issue 4 , pp. 799 – 825.
  • Marks, Susan,(2011)." What has Become of the Emerging Right to Democratic Governance?", European Journal of International Law ,Vol. 22 no. 2,pp. 507–524.
  • McGowan J. Patrick (2003). "African military coups d'état, 1956–2001: frequency, trends and distribution", The Journal of Modern African Studies ,Volume 41, Issue 03, pp 339 -370.
  • Murphy D. Sean (2000). "Democratic Legitimacy and the Recognition of States and Governments", in Gregory H. Fox and Brad R. Roth (eds.), Democratic Governance and International Law, Cambridge University Press.
  • Nesi, Giuseppe (2011), "Recognition of the National Transnational Council: When, How and Why", The Italian Yearbook of International Law, vol: 21, no.1, pp.45-59. DOI:10.1163/22116133-90000209
  • Olander, Marcia (1996). "Costa Rica in 1948: Cold War or Local War?", The Americas, Vol. 52, No. 4,pp.465-493.
  • Oppenheim (1992). International Law, 9 edition, volume 1, Amazon.

 

  • Petersen, Niels (2008). "The Principal of Democratic Teleology in International Law", Brooklyn Journal of International Law, vol:34, Issue:1, pp.33-84.

 

  • Roth R. Brad (2010). "Secessions, Coups, and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine", Melbourne Journal of International Law, volume: 11, pp.393-440.
  • Schnably J. Stephen (2020). "Constitutionalism and the Democratic Government in the Inter-American System", in Gregory H. Fox and Brad R. Roth (eds.), Democratic Governance and International Law, Cambridge University Press.
  • Souaré, K. Issaka (2014). "The African Union as a norm entrepreneur on military coups d’état in Africa (1952–2012): an empirical assessment", The Journal of Modern African Studies, Vol: 52, Issue:1, pp 69 – 94.
  • Varol O. Ozan (2012). "The Democratic Coup d’E´ tat", Harvard International Law Journal, Volume 53, Number 2, pp.291-356.
  • Walldorf William (2010). "Argument, Institutional Process, and Human Rights Sanctions in

Democratic Foreign Policy", European Journal of International Relations, vol. 16, No. 4, pp.639-662.

  • Wheatley, Steven, the Democratic Legitimacy of International Law, United Kingdom, Hart Publishing Ltd, 2010.

 

 

 

  1. Cases

 

  • Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits, Judgment of 27 June 1986.
  •  

Sir Dawda Jawara v The Gambia, (Communications 147/95 and 149/96)

 

 

 

C- Websites

  • Barber, Rebecca (2021), "Will the Taliban Represent Afghanistan at the UN General Assembly", see at:

https://www.ejiltalk.org/will-the-taliban-represent-afghanistan-at-the-un-general-assembly/

 

https://www.ejiltalk.org/democracy-peoples-uprising-and-unconstitutional-change-of-government-in-egypt-the-african-union-principles-and-responses/

  • Weller marc (20121)." Myanmar: Testing the Democratic Norm in International Law", See at

https://www.ejiltalk.org/myanmar-testing-the-democratic-norm-in-international-law/ 30 march 2021.

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The Journal of Human Rights
Volume 16, no. 2 - Serial Number 32
Fall 2021 - Winter 2022, Issue 32
February 2022
Pages 5-28